Marketing the bar (and the reaction thereto)

For this update I had a plan to talk about a couple of recent cases but recently, the Victorian Bar’s attempt to market itself directly to commercial and government in-house counsel has become topical. So, I will hold off on the substantive legal analysis for a week.

Last week, the Bar’s Senior Vice President, Wendy Harris QC gave an interview to the Australian Financial Review, in which she outlined the Bar’s pilot scheme aimed at marketing the Bar and barristers to in-house clients. In the course of that interview, Ms Harris noted the results of data the Bar had collected about the decline of certain areas of work for barristers, such as trial preparation and advice work.

This week, the Law Institute of Victoria’s President, Stuart Webb responded. Unlike Ms Harris’s comments, most of Mr Webb’s are not supported by evidence. Take the following comment, for example:

If barristers are saying, 'we're doing less of the advice work we might have done in the past', that's because the clients believe they'll get the solution to the problem that they've got from high street firms and the large law firms.

This misses the point. Barristers’ work is often mediated through firms of solicitors. That this is the case reflects the greater resources firms have to market themselves to clients. The point the Bar is trying to make is that it, in fact, can offer better value in certain circumstances but that clients often do not know this because of the Bar’s (and individual barristers’) failure to market themselves.

Where Mr Webb’s argument is at its weakest is in the following comment:

How a barrister is charging $250 an hour also is questionable. I think that the costs are more significant than that.

With respect, has he bothered to check? A quick call to one of the clerks would be able to answer that question. If he did call, he would find that such rates are common amongst those recently called to the bar. It is true that those rates increase over time. However, even then, they are often lower than those of an equivalently-qualified solicitor. This is not to say that this is the case for all firms or all practice groups. However, in the market to which the Bar’s program is targeted, it is still largely the case.

The relationship between solicitors and barristers can be a tense one. Barristers will still have most of their work as a result of their relationships with solicitors. While there can be efficiencies to corporate clients from directly briefing counsel, it is not always appropriate to do so. In many cases, a good relationship between clients, their solicitors and counsel can add significant value. However, in my view, that value can be greater if counsel is briefed early, so that they can build those relationships and collaborate in the necessary strategic thinking involved in the first stages of a matter.

It is concerning that the reaction to barristers learning to market themselves better and a few, evidence-based, comments about the value of the Bar can provoke such a sensitive reaction from some solicitors. In that regard, the comments from Leon Zwier, quoted in the later AFR article are comfortingly mature.

More generally, it is annoying that the AFR has decided to describe the Bar’s program as a ‘fees campaign’ as it is much more than that.

This website is a result of some of the training provided by the pilot program. While the original AFR article referred to 150 “young barristers” participating, that is not quite correct. It is mostly the junior bar participating (though I have seen the occasional silk). Those juniors have various levels of experience. The one thing we all recognise is the need to better market ourselves. That should not be something that produces the kind of reaction we have seen from the LIV President.